The Right to Arms in the DC(!) Consitution
Today I was examining an on-line copy of the Washington, D.C., municipal code, and came across a startling item. The D.C. government has enacted a "Constitution" which it styles as the "Constitution for the State of New Columbia." Apparently this was enacted in 1987, and presumably it supersedes the "Constitution of the State of New Columbia" which was enacted in 1982.
In the Bill of Rights section of the 1987 Constitution is the following:
Sec. 102. Right to keep and bear arms.
A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.
The public Westlaw site of the D.C. Code provides a short history of the 1987 Constitution: "Law 7-8 was introduced in Council and assigned Bill No. 7-154, which was referred to the Committee of the Whole. The Bill was adopted on first and second readings on April 14, 1987 and May 5, 1987, respectively. Signed by the Mayor on May 6, 1987, it was assigned Act No. 7-19 and transmitted to both Houses of Congress for its review."
Now, because the District of Columbia has not yet become the State of "New Columbia", the 1987 Constitution has not yet gone into effect. Nevertheless, the Constitution has some interesting implications for the DC handgun ban case for which the Supreme Court is considering petitions for a writ of certiorari.
First, the DC government in 1987 chose to create a new constitution which, unlike the 1982 constitution, contained a right to keep and bear arms. The decision made the proposed DC constitution more normal, in that the vast majority of American state constitution have a right to keep and bear arms.
Second, the DC constitution used language which exactly tracks the U.S. Second Amendment, and the language of several state constitutions: North Carolina, South Carolina, Alaska, and Hawaii. Notably, in 1987, the state court cases on this precise language recognized the right as an individual one which included the right to own handguns. See, State v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Dawson, 159 S.E.2d 1 (N.C. 1968). Cf. State v. Fennell, 382 S.E.2d 231 (N.C. 1989); State v. Mendoza, 920 P.2d 357, 363 n. 9 (Haw. 1996) (not deciding what type of right the arms guarantee was, but stating that interpreting the arms right as both collective and individual, subject to state police power, would be consistent with the majority of other state constitutions); Morgan v. State, 943 P.2d 1208 (Alaska Ct. App. 1997) (holding right, in text that had been modified in 1994, is not violated by prohibition on gun possession by citizens on probation).
It is sometimes claimed (such as by DC lawyers in the instant litigation) that the Second Amendment phrasing is merely a protection of state militias from federal interference. The DC Constitution demonstrates the absurdity of the argument; nothing in the DC Constitution could overcome the Supremacy Clause and prevent federal control (pursuant to the U.S. Constitution) of the DC state militia. The only plausible explanation for the placement of the right to keep and bear arms language in the "Bill of Rights" section of the DC Constitution is that section 102 of the DC Constitution has precisely the same effect as every other section of the DC Constitution's Bill of Rights: to shield the individual rights of ordinary DC citizens from potential abuse by the New Columbia state government.
Accordingly, when DC lawyers argue to lower federal courts, and to the U.S. Supreme Court, that the language of the U.S. Second Amendment is not an ordinary individual right, they are making an argument which is decisively contradicted by the very constitution adopted by the government whom the lawyers are representing.
Second, DC's cert. petition makes the novel argument that the District of Columbia (an entity over which the U.S. Constitution grants Congress plenary power) is somehow already a sovereign state for purposes of the Second Amendment; they claim that the 1886 Supreme Court decision in Presser v. Illinois, which held that under the 14th Amendment Privileges and Immunities clause, none of the Bill of Rights are enforceable against states, immunizes D.C. today from the enforcement of the Second Amendment. Yet the New Columbia Constitution shows that D.C. wants to be a state and wants the exact language of the Second Amendment to be enforceable against D.C.
Strictly speaking, Presser is irrelevant, because D.C. is not yet a state, but even if D.C. were somehow considered a quasi-state, the D.C. Constitution shows D.C.'s desire to be subject to the language of the Second Amendment.
Brilliant find, David.
All this shows is that some group in DC government back in 1987 wanted to protect gun rights. Now I see the appeal of assuming that whoever inserted this language into the proposed DC constitution must have assumed it was a meaningful statement and thus meant more than a mere guarantee of state's rights but I don't think this is actually true.
Quite likely what happened is that pro-gun elements of the government wanted language protecting gun rights in the constitution while other groups did not. This language was then probably inserted as a compromise under the assumption that it would place no new restrictions on the DC government. Now you might argue that people would have realized that in a state constitution this language would have a different meaning than the federal language because it could only protect individual rights. However, this undermines the very argument you are trying to make here. If indeed whether this language is in a state or federal constitution changes it's meaning and application then you can't draw any conclusions about the federal meaning from the state meaning.
Besides, even if we grant that this amendment was inserted believing it protected individual gun ownership so what? No one denies that some people believe that the 2nd amendment is an individual right. The fact that these people once had more power in the DC government is hardly relevant.
That would be, IIRC, thankfully non-Justice Bork.
No, far more plausible--in fact, most likely--is that the lawyers putting together the DC Constitution tried to make it look as much as possible like the US Constitution in order to avoid nitpicking and spurious objections.
That they had no clue as to the ramifications of doing so is only par for the course in the DC government.
Of course, the real determination of what the Ninth Amendment protected is the rights that were not subject to governmental limitations in 1791—not what a judge in 2007 decided should have been protected.
In the McIntyre case, the Indiana Supreme Court used this reasoning to conclude that the Indiana Constitution of 1850, since it continued to use the language of the 1816 Constitution, had not changed the constitutional status of concealed carry. The Indiana Supreme Court in State v. Mitchell (Ind. 1833) found that concealed carry was not protected by the 1816 Constitution's RKBA provision.
By this same reasoning (which doesn't seem completely absurd), the presumption would be that the 1976 law was not going to be contrary to "New Columbia" RKBA provision.
Also:But... the people in power at the time set the rules, didn't they? That's how the system works. It's up to those who come to power decades later to change the rules, if they want to and are able to. Otherwise, the original rules rule. Unless, of course, someone gets a judge to simply throw out, or deliberately misinterpret, what was originally intended. But if that's the case, we've moved from the rule of law to rule by judicial decree.
This is precious. I'm hoping this has been brought to the attention of Robert Levy and Alan Gura. Although, being the professionals that they are, I wouldn't be surprised if they knew this already.
It would certainly be nice if this could be brought could be used to clinch the pro-gun argument.
Here's to hoping that the Supreme's grant Cert.
Speaking as a former resident of the District, this is by far the best explaination for the language. To imply that there was rational thought behind the change is contrary to all the evidence.
1. While a Bill of Rights is generally about protecting rights, it is not at all clear that all rights protected in a state constitution or the U.S. Bill of Rights are necessarily individual rights. For example, Amendment X protects the rights (or more properly, the powers) of states.
2. State constitutions often have some protections for individual rights, even if not part of a "bill of rights." The U.S. Constitution had a number of protections of individual rights squirreled away in various odd places, even before the Bill of Rights was added. For example, the ban on ex post facto laws.
3. While it is not the case that the Second Amendment was intended to protect a right of the states, this argument was used with respect to the Kansas Constitution's guarantee in City of Salina v. Blaksley (Kan. 1905). While the claim with respect to the Second Amendment is historically wrong, there is a way to validly misread the Second Amendment as protecting the right of the states to maintain militias from federal interference. The reasoning of the Kansas Supreme Court in using this argument with respect to the Kansas Constitution's Bill of Rights made absolutely no sense. It was not just historically wrong, but illogical. Why would a state constitution guarantee to the state the right to maintain a state militia?
There's no reason to assume that the federal constitution and the state constitution guarantee the same rights. If the federal constitution already guaranteed an individual right what would be the point of putting it in a state constitution? They may have put it in state constitution to guarantee a more expansive set of rights than the federal government guarantees.
The 10th Amendment allocates "powers" while "rights" are mentioned in a number of other places. Is a power the same as a right?
Can an attorney explain if there is a legal distinction between the two that is important?
It seems obvious to me that Rights wouldn't be granted to authorities (States or Federal Government) while powers would be. And Rights would be citizen oriented. But that's just a non legal inference. I'd love to see some explanation of this.
Newt
D.C. Code § 49-401 provides that "Every able-bodied male citizen resident within the District of Columbia, of the age of 18 years and under the age of 45 years, excepting persons exempted by § 49-402, and idiots, lunatics, common drunkards, vagabonds, paupers, and persons convicted of any infamous crime, shall be enrolled in the militia."
So D.C.'s militia has five or six members, maybe more!
They should have representation and the way to give it to them is NOT to make D.C. some kind of mini-state or give it a voting House seat.
The civilian population of D.C. and all non-Federal buildings should revert to Maryland or Virginia or whatever state they came from.
End of (representation) problem.
GovernorMayor Fenty can go back to being simply a big City Mayor.eric: I laughed.
The Virginia portion of DC (now Arlington, Va.) was "retroceded" to Virginia in 1846. That process should be repeated regarding the current DC.
As for the RKBA, I doubt the Supreme Nine will take it into. The New Columbia State Constitution (both version) are merely proposals. They have no legal force and I don't think any of the Justices want to give either of them anything close to legal force.
A "power" is a grant of ability to (legitimately) do something. A government of enumerated powers is not allowed to do anything for which it hasn't been delegated a power.
A "right" is a protection individuals have against the government, a recognition that the government cannot achieve what they have the power to do any way they wish.
For example, the government has the power to set up post offices. They don't have the power to set up medical offices. So setting up medical offices might be seen as prima facie unconstitutional, while setting up post offices wouldn't be. But let's say the government chose to set up post offices by dragooning, drafting, the first 10 adult males that walked by the post office building to work in the post office. The mere fact they have the power to set up post offices doesn't mean they can do it like THAT! Why? Because doing so would violate the individual's right to life and liberty.
At least, that's how this non-lawyer sees it.
So how is Baltimore doing these days?
...I think Mr. Kopels discovery is.....A. Bite. of. FILET !!!!!!!
Those who live in DC live there by choice. Their lack of representation is a consequence of their choice to live there.
I believe the laws passed by the DC Council and Mayor are unconstitutional. The legislative powers in the district are exclusive to, and vested in, Congress; and Congress has not been granted power in the Constitution to delegate any of its powers.
Woody
As DC residents have very limited voting rights and no congressional representation, they should be freed of having to pay federal taxes.
This would permit DC to increase it already high rate of income tax to 20%-30% and residents would still come off ahead.
Extend the tax freedom to businesses and every corporation in America will seek to re-establish its headquarters on the Potomac.
There's be so much money in DC that it would become a wonder to behold, a true Babylon on the Potomac.
Argument: the second amendment should be understood as solely protecting a state's right to have a well-reg'd militia (or in a variant, the right of a person to serve in such a militia if the state should create one, i.e., a right to do something if a government affirmatively allows it... not much of a right).
Counterpoint: many states have provisions that track the second amendment. Does this mean that the state desired protection itself infringing its right?
Digression: it is ironic that, should some body every actually constitute this state of New Columbia ... it would be named after the new world's first, and downright obsessive, slave taker.
If that means that they'll choose a state with low or no state income tax, so be it.
--------------------------
I.e. "the new world's first, and downright obsessive, [European] slave taker."
IANAL, but this doesn't seem too hard: Congress has the power to establish, fund, and regulate the armed forces. That must necessarily include the power to establish pay and other compensation for the employees of the armed forces. VA services are delayed compensation - and I think the promise that they will take care of you if you get hurt is indeed a factor in recruitment, at least by greatly reducing the negative inducement of legless and blind veterans begging on the streets. (Nowadays most of the ones you'll see begging in army-surplus clothing are not really vets - they never could have passed the physical and psych exams, even if they've convinced themselves they served.) One might wonder whether wouldn't be far more effective to apply the money used in serving non-disabled and non-retired vets to a pay raise for those in the service, but that's a policy decision for Congress.
OTOH, I see no power to set up medical offices for the general population (or for anything resembling H. Clinton's or Edward's plans) - except by the usual over-extension of the commerce clause...
When a 1987 constitution quotes 18th-century language, how do we interpret it? Look to what the words meant in 1987, taking into account the prevalence of power pop and the death of disco? Look to what the 1987 "framers" thought the words meant in the 18th century? The mind reels.
And, in the "Eats, shoots and leaves" category...
The punctuation of the D.C. version omits the comma after "militia." To my mind, raised on 20th century grammar, that is a little clearer (and perhaps a tad less pro-private-possession?) than the original. D.C. retains the equally unnecessary but even less consequential comma after "arms."
The claim made in City of Salina, however, was not finding that there was a right protected by the Kansas Constitution that was different from the Second Amendment, but found that it was protecting the right of the state to have a militia. But against whom does a state constitution protect? From a state government—not the federal government. A state constitution that attempts to protect the state from itself does not make any sense.
Well, he was right, but for the wrong reason.
This assumes that the folks in 1791 didn't intend that the conception of which rights were reserved to the people might change over time.
A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
I have an idea to expand on this: everyone who lives in DC should be required to declare a state of residence, and should then be under that state's jurisdiction and vote and pay taxes in that state (just as if they were temporarily living abroad). There should be no such thing as a resident of Washington, D.C. All city government should be dissolved immediately, and the district be placed under direct control by the federal government, with administrators appointed by the President and confirmed by the Senate (no more voting for Marion Barry).
Most people who live there would choose to become either Maryland or Virginia residents, because of the proximity. But then I am sure many would choose to declare themselves residents of the State of Washington for tax purposes. Of course, I would also encourage every state to enact some sort of residency requirement, to prevent people from spontaneously declaring themselves residents for no tangible reason.
We would then no longer need a DC Circuit, as there would be no DC residents. The DC bench could be absorbed into the other circuits. And there would be no DC code, at least not in the current sense. The appointed administrator would write a new set of administrative rules.
I know this all pretty far-fetched, but at least there would be no one living in DC without proper Congressional representation or rights under a State... and it would be more fair than simply dividing it up between MD and VA, since all 50 states have a stake in DC.
They refused to confront slavery, believing that it was going to wither away on its own. (And it might have, except for the cotton gin's invention, caused by another provision of the new Constitution—the one providing for national patents.) Amendment XIII fixed it.
Amendment XIV handled the question of whether blacks were citizens or not.
Amendment XV guaranteed that black men could vote on the same conditions as white men.
And when the public perception about women and voting had changed enough, first individual states gave them the right to vote, then we amended the Constitution to guarantee them the right to vote.
And we did the same to abolish poll taxes and literacy tests in federal elections (which effectively wiped them out in state and local elections).
And we amended the Constitution to guarantee the vote to 18 year olds.
So why is this process that has worked so well all along suddenly insufficient to take care of your pet group?
No one believed it, but Virginia wasn't exactly in a position to argue that their Constitutional rights were being violated, since they were out of the building at the time. Nor could Virginia make much of an argument against West Virginians seceeding, having just done something rather similar.
The hitch I found was determining their residency location for the purpose of elections below the state level (US Reps, and state official).
Not quite. After the Commonwealth seceded, a number of representatives of the more unionist portions of the state (primarily from what later became West Virginia, to be sure), met in convention in Wheeling (safely under federal control) and asserted that the state government had effectively dissolved itself by attempting to secede, and that the convention was now the embodiment of the people's sovereginty. This convention created what was called the "Restored Government of Virginia." The federal government recognized it as the true government of the state, and even accepted as U.S. senators those people elected by the "Restored" General Assembly and sent to Washington.
This Restored General Assembly is what gave its consent to the establishment of West Virginia. Once West Virginia was admitted to the Union in 1863, the Restored Government moved to Alexandria. It had effective control of only those parts of Northern Virginia and Tidewater where the Union army held sway. (Even there, I doubt it did much actual governing, and that the real power was in the hands of the army.) In 1864, a "constitutional convention" was held in Alexandria that adopted a new constitution for the Commonwealth.
When Richmond fell in 1865, the Restored Government moved there from Alexandria and attempted to assert the authority that, up to then, the federal government had always pretended it had. But even the Restored Government wasn't good enough for the Radical Republicans in Congress, which in December 1865 refused to seat representatives elected under its authority, and even refused to seat Sen. John Carlile, who had been elected by the Restored General Assembly in 1861, who had served in the 37th and 38th Congresses, and whose term had not yet expired. Soon, the Restored Government was replaced by military rule pursuant to the Reconstruction Act of 1867.
That would be, IIRC, thankfully non-Justice Bork
Oops. That's what I get for not checking to confirm that my memory was accurate.
I would be absolutely astonished if the "Constitutional Convention for the State of New Columbia" had a single delegate who could be described as one who "wanted to protect gun rights." There was probably no compromise. There was just the thought that copying the bill of rights from the U.S. Constitution would be like supporting motherhood and apple pie, and that they could rely on the judges to construe the language the same way the federal constitution was construed (i.e., to provide effectively no gun rights).
The following from the First Congress where the Bill of Rights was crafted shows that the Bill of Rights was intended to apply to the several states due to the hodge podge of protections in the several states:
Note in particular, the part I posted in bold.
You can add Texas to the list of states who believed the Second Amendment applied to the states:
Woody
Rights are Natural. You are born with rights. You have the natural right to breathe, to eat, and to reproduce. Rights are more than obvious and rights are basic. Rights are also profound. A right is an act that you can exercise without reducing the quality and quantity of another persons enjoyment of the same right. My right to vote does not diminish your right to vote, though they may compliment or cancel each other according to who we vote for or against. Rights are not "zero-sum", but are expansive.
Powers proceed from the rights of men to form a government in order to protect these "Natural Rights". Powers are "collective", not individual, and are subordinate to rights. In the entire text of the US Constitution only "people", "persons" or "person" have rights and only government has "powers". The terms "Rights" and "Powers" are absolutely NEVER used interchangeably in the entire document. Hence there is no, "States Rights" in the Constitution (nor should there be, a state has no right to live). "Powers" are definitely "zero-sum" and limit government. However, "the people", do retain any left over "powers" (such as they are) in the 10th. Amendment (such as it is).
The Founding Fathers did not play fast and lose with the language and context of the U.S. Constitution. Terms such as "Collective Rights", or "Peoples Power", do not appear in the Constitution because they are, in any context of human affairs, oxymoron's. They deserve the same grammatical and legal graveyard as the infamous, "Separate but Equal"!
Each right mentioned in the Bill of Rights is always accompanied by a corresponding clause that restrains the power of government to effect that right. For example: "Congress shall make no law" (1st Amend)..."shall not be infringed" (2nd)..."No soldier shall" (see Engblom v. Carey, 3rd.)..."The right of the people to be secure in their persons...shall not be violated...but upon probable cause...warrants issued...supported upon oath (4th.) And so on. The Constitution is constant in restraining government's powers regarding the peoples rights.
However, comma's and their usage is not as constant as the Constitution. Furthermore, a comma is not a word, it has no meaning other than as punctuation subject to fashion. Though punctuation is important in the readability of the written word, whether a sentence has one comma, three commas or no comma, a comma does not alter the intent or meaning of the author but only the perception of the reader. The author, if available, is the true arbiter of the meaning (Original Intent?) of the sentence. Punctuation, either excessively elaborate, omitted for clarity or by ignorance, should never be permitted to reverse the meaning of the words of a sentence. We all have read the 2nd. Amendment with anywhere from none to four comma's and,..."the right of the people...shall not be infringed",...still retains its same basic meaning. Comma's have their place in grammar and they should stay there. A comma with "meaning" is, well, Orwellian!
C. Norris.